The Halakhic Parameters of Delaying Procreation
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The Halakhic Parameters of Delaying Procreation Moshe Kahn Bio: Rabbi Kahn is a teacher of Talmud and Jewish law at Stern College for Women, the Graduate Program in Advanced Talmudic Studies at Stern College, the Drisha Institute, and is a member-in-training to become a psychoanalyst at the National Psychological Association for Psychoanalysis in New York City. Abstract: This article aims to show that there is a strong halakhic basis to allow a childless couple to postpone procreation temporarily and without an arbitrary time limit imposed. It focuses on the rulings of Rivash and Rema, who recommend that the rabbinic leadership adopt a laissez faire policy regarding marital issues The Talmudic teaching extolling zealousness is not absolute and would not apply if a delay would enhance the performance of the commandment. The fear of a premature death is not a factor with regard to the commandment to procreate. A Forum of Modern Orthodox Discourse Orthodox Modern of Forum A M e o r o t Meorot 8 Tishrei 5771 © 2010 A Publication of Yeshivat Chovevei Torah Rabbinical School The Halakhic Parameters of Delaying Procreation1 Moshe Kahn As a Talmud teacher at Stern College for context, I would like to consider the following Women for almost three decades, I have found questions: Does a couple’s wish to delay myself confronted in recent years by an fulfilling the commandment to procreate increasingly greater number of requests to require rabbinic permission? If so, what are the decide questions of marital issues. My students halakhic determinants of the discussion? If not, seem simultaneously pulled in opposite what are the consequences of rabbinic directions. On the one hand, many of these involvement into this personal matter? women are classically modern Orthodox, independently learned and fluent in halakhic texts; on the other hand, they appear Does a couple’s wish to delay fulfilling the increasingly reliant upon rabbinic authority to commandment to procreate require rabbinic decide matters that may fall under the rubric of permission? personal autonomy. Nowhere is this tension more poignant than in questions of contraception.2 At the outset, we must distinguish between two categories of positive Torah laws. Some Many of my finest students are unaware of the positive commandments are time-bound: Once latitude offered them by halakhic precedent. a designated time passes, the opportunity to They are often embarrassed by their wish to fulfill them is gone. Eating matsah on the postpone procreation (as if it reflects a lack of fifteenth day of Nissan is such an example. faith) and they approach me with painful Other positive commandments—such as trepidation to tell their stories. Some of them procreation—are not limited to a certain time. and their prospective husbands intend to If a man3 fulfills this mandate late in life, the pursue graduate study, they are torn by a fulfillment is just as valid as that of a younger perceived difficulty in managing baby and man. Nevertheless, the question remains career. Others, who may be leaving their whether the delay itself is permitted. childhood home for the first time, are struggling with a lack of confidence in their There are three halakhic issues that we must ability to assume parenting roles. And I suspect address: that there are further reasons that these young men and women do not know or cannot 1. Is a delay considered a violation and articulate. They frequently ask their rabbi cancellation of the commandment because they believe or have been told that itself until it has been fulfilled? they must do so, sometimes because they perceive rabbis as benign paternal authorities 2. Does the concept of zerizin maqdimin le- who will help them cope with their anxieties. mitsvot, the conscientious fulfill the commandments expeditiously, We, as rabbis, must give our young men and necessitate a prompt fulfillment? women proper counsel and guidance. In that 3. Does the fear of an early demise— 1. I owe a debt of gratitude to Dr. Judith Isaac for assisting me in the preparation of this article. 2. The halakhic permissibility of various methods of contraception is beyond the focus of this article. 3. Only men are obligated. Meorot 8 Tishrei 5771 Kahn 2 heishinan le-mitah—also necessitate a nature of the mandate is particularly severe, prompt fulfillment? or because the kohen is relieved of the more general obligation expressed in the Is a Delay a Violation? talmudic dictum of zerizin maqdimin le- mitsvot (BT Pesahim 4a). Still, if one At the end of his commentary to Nega`im, the procrastinates for no reason at all, he might Hazon Ish discusses the temporal parameters of arguably cancel and violate the injunction. positive non-time-bound commandments.4 He Yet even in such a situation, it possibly first suggests, based on a ruling in the Talmud may not be a violation: As long as his (BT Mo`ed qatan 7b), that delaying the intention is to fulfill the law, the delay is performance of such laws is a violation of the not viewed as a nullification of the Torah's laws themselves. In other words, even though mandate. This position is supported by a a man can still fulfill the commandment, the ruling of Tosafot (BT Pesahim 29b): If one mere delay constitutes a temporary cancellation possesses hamets at the start of Pesah, with of that law. In that context, the Hazon Ish cites the intention to destroy it later during the talmudic discussion (ibid.) of a kohen’s Pesah, he does not violate the prohibitions obligation to examine a person suspected of against owning hamets.6 having contracted leprosy. Can a kohen delay the performance of this obligation? The In sum, the Hazon Ish starts with the view that Talmud cites a biblical verse (Lev. 13:14; 14:36) a delay in performing non-time-bound to prove that a kohen can delay for the purpose commandments constitutes a cancellation of of facilitating the fulfillment of another statute the law. He then rejects that position based (and according to one opinion even for a upon several talmudic rulings, and finally secular purpose). By implication, it would concludes that a delay would be permitted for appear that a postponement is forbidden for a divine or secular motive and possibly even those commandments that remain unrooted in for no reason at all. But the Hazon Ish only an explicit Biblical text to permit a delay. The discussed non-time-bound mitsvot in general; he Hazon Ish provisionally suggests, therefore, that did not address the specific commandment to a delay may constitute a temporary cancellation procreate. of the law itself. Yet the Hazon Ish ultimately rejects that view, “The commandment to procreate begins at the given the absence of support for it in other age of seventeen; if he is not married by the age talmudic rulings. He says, for example, that the of twenty he is violating this mandate.” mandate of halitsah/yibbum can be delayed. He also cites the talmudic statement (BT Pesahim 4a) that, in general, a delay in fulfilling a Regarding procreation, R. Huna (BT Qiddushin positive commandment represents only a lack 29b) says that a man should be married by the of conscientiousness, not a cancellation.5 He age of twenty, because all his days will therefore concludes: otherwise be filled with immoral sexual thoughts. In the Mishneh torah, Maimonides …with all non-time-bound positive codifies the halakhah as follows: commandments one can delay for the sake of another mitsvah or to avoid a monetary The commandment to procreate begins at loss. And the need for a verse in the the age of seventeen; if he is not married leprosy case is either because the essential 4. He does not discuss the specific commandment to procreate, but only this category of mitsvot as a whole. 5. The Hazon Ish does not find this proof very compelling, because this citation refers to time-bound commandments, which one does not violate until the passage of the particular time frame. 6. The translation is mine. Meorot 8 Tishrei 5771 Kahn 3 by the age of twenty he is violating and Rosh differs from Maimonides on the canceling this mandate (Hilkhot Ishut 15:2). permissibility of delay, arguing that the court may force a man to marry by the age of twenty Clearly, Maimonides would agree that a person in order to enforce the mandate to procreate can fulfill this commandment at any age since, (Yevamot 6:16). He specifically notes that the according to the Torah, it is not time-bound. courts can coerce someone who does not want to However, for as long as he postpones, he is marry [emphasis mine], and herein lies the transgressing and temporarily abrogating the difference between Maimonides and Rosh. law. Maimonides simply says he does not marry— the mere fact that he reaches the age of twenty Maimonides codifies a similar ruling with and is not married is a violation. But according respect to the mandate of circumcision (Hilkhot to Rosh, he is only subject to judicial coercion if Milah 1:2). He rules that from the time an he does not ever want to marry. By uncircumcised male becomes an adult he is implication, if he wishes to marry at a later transgressing and canceling this mandate, yet date, he would not be transgressing. (The Pithei he is not liable for karet unless he dies teshuvah makes this inference, which I will uncircumcised. Undoubtedly, once elaborate on later.) circumcised, he has indeed fulfilled his obligation. Nevertheless, until that time, each Rashba (Responsa, 4:91) rules in the same way day he procrastinates is considered an active as Rosh.